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Métis are "Indians" under law, judge rules

But what that means is unclear, say experts

By: Kevin Ma

  |  Posted: Saturday, Jan 12, 2013 06:00 am

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Sharon Morin was one of thousands of Canadians who woke up Tuesday morning to learn that the Federal Court had ruled her to be an “Indian” under the Constitution Act.

It’s a ruling she rejects on principle. “We pride ourselves on being Métis,” says the Métis city resident. “I’m not an Indian, and I’ll never be an Indian.”

In a landmark case that has dragged on for some 13 years, the Federal Court ruled Tuesday that Métis and non-status Indians were “Indians” under the Constitution Act and under federal jurisdiction. The case had been brought against the federal government by a group of Métis and non-status Indians and the Congress of Aboriginal Peoples.

The ruling could have broad implications for some 404,000 Métis and about 200,000 non-status Indians in Canada, with some experts saying it could cost the government billions should it extend the benefits received by registered status Indians to those groups.

The case asked Judge Michael Phelan to determine who had jurisdiction over Métis and non-status Indians. The Constitution Act says Parliament has power over “Indians” but doesn’t say if Métis and non-status Indians are “Indians.”

The result has been decades of neglect and discrimination, says former senator Thelma Chalifoux. “Nobody wanted to take responsibility for the Métis,” she says. “Our people were living on road allowances … we didn’t have homes. We didn’t have anything that the treaty (Indians) had.”

Phelan reviewed some 800 exhibits and about 410 years of Canadian history in his 176-page ruling. He found considerable evidence that the Métis and non-status Indians were considered “Indians” by government officials from the 1600s until modern times, with one cabinet memo saying they were “the most disadvantaged of all Canadian citizens” due to federal inaction.

These citizens had been subject to “buck-passing” by the federal and provincial governments, he wrote, creating a large number of “collaterally damaged” people who were “deprived of programs, services and intangible benefits recognized by all governments as needed.”

Phelan declared that the Métis and non-status Indians were Indians under the Constitution Act, placing them under federal jurisdiction. He did not impose fiduciary responsibilities on the federal government to those peoples as a result, but said such obligations would likely flow from this declaration.

“Hopefully, the resolution of the constitutional issue will facilitate resolution on other matters,” he wrote.

This ruling was a long time coming, said Chalifoux, who has spent most of her life fighting for Métis rights. She believes the ruling could eventually help Métis and non-status Indians apply for the federal support that’s now available to other aboriginals.

This was an important symbolic act, said Chris Andersen, director of the Rupertsland Centre on Métis Research at the University of Alberta, as it’s the first time any Canadian court has found that the Métis and First Nations were on the same legal level under the constitution.

“It’s not saying that Métis are Indians under the Indian Act,” he said, which would impose immediate legal obligations on the government. All it says is that the word “Indian” in the constitution was used the way we use the word “aboriginal” today.

The decision would likely spark debate on how to classify people as Métis, Andersen said, as there are competing definitions for it.

“If you now suddenly start talking about 400,000 more (Métis) people and 200,000 non-status Indians, after awhile you’re going to start seeing some real expenses,” he said.

It will be years before we know the decision’s full effects, he added. It’s very likely that the government will appeal the ruling, he said, and he doubted it would lead to land claims or billions in costs.

The ruling has already brought the role of aboriginals in Canada’s history to the forefront, said Morin, who works at the Musée Héritage Museum.

“It’s a really interesting time for Canada,” she said.

The ruling can be found on the Federal Court’s website.


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